Who Owns My Property?
Rich predators whom I once trusted continue their ugly game of "keep away" with my art and livelihood.
On January 9th, I met Christine Russell in person for a meeting that was fruitless. While perfectly pleasant, she did not have a grasp of the industry that I knew very well and little knowledge of the musical form. At one point I showed her a clip from the Ashland production, and she seemed surprised that it was funny, leading me to wonder how my original work was portrayed. When I mentioned the sloppy writing in Mayer’s version, she said, “Maybe your play was a little too hard to understand” – even though fifth-graders followed my show perfectly and loved it.
“It happens all the time in this business,” this newcomer to the industry told me of the theft of my work. I’d been in the field for two decades and this was certainly the first such situation I knew of.
I was careful not to put my foot down and stop the January workshop, as was my right, because I would then be portrayed as “difficult” and to blame for any and all failings on the part of those who stole my work.
By this point, my savings were dwindling to dangerous levels.
Leslie began to mention email interchanges that he was having directly with Christine Russell regarding a buy-out offer, such as the following:
February 1, 2017 at 4:09 PM
FROM: Leslie Ben-Zvi
TO: Christine Russell
Our position has consistently been that the purpose of the workshop is to develop Jeff’s material, not some unauthorized version thereof by a third party. The fact that the workshop was fast-tracked without regard to Jeff’s delivery of his script is unfortunate, but something that your co-producers need to own. Had they not recklessly moved ahead with an unapproved script, they wouldn’t be in this position.
It would also be reckless - and defamatory – to imply on any level that Jeff is to blame for any of this. We stand by his solid reputation in the theatre community and do not fear any fallout from this chapter which is, once again, entirely the doing of your co-producers, who are new to the Broadway community. Jeff is highly regarded and sought after for his creative output and incredible work ethic. And unlike your colleagues, he has fully abided by the contract, a fact also appreciated by the Broadway community.
Jeff truly wants Head Over Heels to proceed using his revised script and wants to use the workshop to develop HOH for Broadway 2017. There is still time to do that - remember, a full-scale production was mounted in Oregon not long ago and Jeff’s modifications are based upon that script. If, however, the producers feel they need more time, my suggestion is that the workshop continue but the presentation be put off for a few weeks. The Broadway professionals you are looking to attract will fully understand the commitment to perfection.
In response to your buy-out inquiry, since you are asking Jeff to give up years of his work and give up the opportunity to use his script with a different musical catalogue, your buy-out offer will need to be far more substantial than it is.
While Leslie’s defense of me was spirited and true, in retrospect this is when a serious secondary breach of ethics began, reflecting poorly on both Leslie Ben-Zvi and Susan Mindell.
Why was Christine Russell engaging directly with my attorney?
Why didn’t Leslie instruct Christine to engage her lawyers at LPMNY instead, and communicate through them?
This is a small breach that would snowball and escalate in the ensuing months. I was paying Leslie $500/hr, and this began an ugly new phase of financial exploitation of which Leslie became an unwitting enabler. LPMNY began to send their clients to communicate directly to my lawyer in full knowledge of my precarious financial position, knowledge that they possessed as they were my former law firm. Christine proceeded to contact Leslie relentlessly, running up my bills at $500/hr. In the following months I would be forced to choose between homelessness and signing a buy-out with a nondisclosure agreement attached. I told Leslie in plain terms that an NDA was not on the table. His defense of my position remained spirited:
February 1, 2017
FROM: Leslie Ben-Zvi
TO: Christine Russell and Susan Mindell
Dear Christine & Susan,
Before I present you with Jeff’s response to your proposed use of his material, I hereby notify you that the second extension of the April 15, 2013 Deal Memo, the basis upon which the Producers purport to still have an option to produce Jeff’s book, has irrevocably expired. As you know, there never existed a third extension and the parties neither agreed to nor exchanged consideration with respect to the same. Hence, it is our position that the Producers’ right to produce no longer exists and Jeff is contractually free to use his copyrighted intellectual property in whatever manner he wishes.
Although Jeff has presented you with his revised book, has been willing to make further revisions, and has been available to workshop the production of his book, the Producers have consistently (i) rejected his book and participation, (ii) ignored his contractual disapproval of the Magruder versions of his work, and (iii) mounted a workshop of the Magruder version for potential investors, producers and theatre owners despite all of the above. I remind you that upon numerous occasions, we have expressed our written disapproval of the Producers’ actions and positions and have reserved all our rights and remedies.
Your latest position, despite the fact that the option has expired, back tracks from your previously rejected offers. All you offer us now is (i) that you still intend to use the unapproved Magruder version of Jeff’s book, (ii) that you would ‘welcome’ but not necessarily use Jeff’s revisions to the Magruder version, (iii) that Jeff is neither a member of the creative team nor welcome at rehearsals and (iv) that Jeff will still be paid. Our response is: that is not going to happen.
Inasmuch as the Producers’ option has irrevocably expired, unless you agree with our very generous terms and conditions, you have no right whatsoever to use Jeff’s copyrighted material. This, as you know, goes beyond the fact that the Producers violated the Deal Memo by using the unapproved Magruder versions of Jeff’s book. As I’ve indicated in previous correspondence, if Jeff’s contractual or intellectual property rights are violated or compromised, we will seek judicial intervention.
Our offer is as follows:
1. Jeff will agree to the existing Tom Kitt arrangements and juxtaposition of music throughout the script.
2. Jeff will also agree to the existing book structure, characters and script.
3. You cannot use Jeff's name and stature without using his words. If Jeff is permitting the Tom Kitt music/arrangements (#1) and the new book structure, characters and script (#2) to go forward, the existing dialogue must be rewritten so as to be consistent with Jeff’s original dialogue, i.e., in iambic pentameter. Once that is done, only minor, pre-Broadway edits that are standard in the industry will be permitted.
4. The producers will receive non-exclusive merger rights by which Jeff gets an option to produce HOH one year after the last first class production of the instant HOH with the following provisos: it may include new arrangements of the Go-Go’s music as well as a book based upon Jeff Whitty’s most recent script, a copy of which has already been provided to you.
5. Once we agree upon the above, we can discuss money and credit.
Jeff remains available at any time to meet with Donovan, Rick & Christine regarding HOH and everyone’s shared goal of bringing it to Broadway.
February 28, 2017
FROM: Leslie Ben-Zvi
TO: Susan Mindell
Your clients’ proposed settlement as set forth in your February 24, 2017 email and attachment is hereby rejected.
The clear and unambiguous meaning of the Deal Memo is that the Producers were granted a limited option to produce Jeff Whitty’s book (i) in exchange for payments to him and (ii) contingent upon their producing Head Over Heels within a fixed period of time that ended with the expiration of the second extension period. No rights were granted in perpetuity – if they were, then your law partner, Conrad Rippy, who was Jeff’s lawyer at the time, may have committed malpractice.
Producers only have two moves at this juncture: (i) seek a new book writer for the Go-Go’s catalogue or (ii) come to an agreement with Jeff Whitty by which he grants them a third extension and approves the version of his book that they seek to use for Head Over Heels. If Producers do neither of these things and attempt to use any portion of Jeff Whitty’s book, they will be infringing upon his intellectual property (which as you know has been formally registered with the Copyright Office) and may be subject to statutory penalties as well as other damages.
Moreover, Producers will be in serious breach of the Deal Memo by using a book for which the rights have undeniably expired and which has expressly and repeatedly not been approved by Jeff Whitty. Finally, a word of advice: if none of the above is expressly stated to potential investors, producers and theatre owners, your clients may very well be in violation of various federal and state laws.
We sincerely prefer not to litigate this matter, but we will vigorously defend Jeff Whitty’s intellectual property and contractual rights should you give us reason to do so.
In conclusion, unless the Producers have come to an agreement with Jeff Whitty by this Friday at 5pm as outlined in my previous email, he will, as is his absolute right, be pursuing a new musical collaboration for his book which will have been wiped clean of all references to the Go-Go’s catalogue.
Eventually, a deal began to get hammered out, and I felt helpless as giving up my show was my only way to remain financially solvent. It sucks being a broke artist with predators afoot.
I ended up paying Leslie $46,855 in legal fees trumped up by my former law firm, who knew I was broke because they were my former law firm.
The producers would get full ownership of my work, and I would be forced to allow them to use my name in the program and in the marketing. Leslie ran several versions of the NDA’s position statement past me. As drafted by LPMNY, they naturally contained fabrications and falsehoods. I flatly refused to agree to lie to excuse confidence artists who had behaved so disgracefully towards me. Finally, they hammered out three sentences that I agreed to:
“Jeff Whitty’s original book was tied to specific language and arrangements of the Go-Go’s music. Incoming director Michael Mayer had a different vision for ‘Head Over Heels’ and Mr. Whitty chose to leave the production. All concerned wish one another success in their future endeavors.”
All of this was true on the surface, though the statement omitted that Mayer’s “different vision” involved getting plum spots for his cronies and agency buddies while decimating a musical of proven audience appeal. And “wish[ing] one another success in their future endeavors” was also true, for Mayer would not come near any of mine. Head Over Heels was his current endeavor, and while I did not wish him success there, best to let Mayer’s shoddy work deliver just desserts on its own.
I signed the agreement bitterly, well aware that I’d not be in this position if I had the finances to fight my former law firm. And the reason I did not have money is because they betrayed my fiduciary trust in the first place, destroying my once-promising art and my only chance for an income.
As a result of my exploitation, I lost millions of potential dollars as they gleefully rushed into an inevitable failure using my stolen work, treating me like human garbage to be shunned.
The shame I felt was a pressing feeling that brought on thoughts of self-harm.
I reached for anything on hand to make the feeling go away.
I was totally alone.